IN RE: J.W. (2004)

J.W. was prosecuted under the “extended jurisdiction juvenile prosecutions” provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-810 (West 2000))(EJJ statute) for the stabbing of her mother.   A jury convicted her of first degree murder (720 ILCS 5/9-1(a)(West 2000)).   The court sentenced her to juvenile detention for a minimum of five years as required under section 5-750(2) of the Juvenile Court Act of 1987 (705 ILCS 405/5-750(2)(West 2000)) and the EJJ statute (705 ILCS 405/5-810(4)(i)(West 2000)).   It further sentenced her to an adult sentence of 35 years' imprisonment (730 ILCS 5/5-8-1(a)(1)(West 2000)), which sentence was stayed pursuant to the EJJ statute (705 ILCS 405/5-810(4)(ii)(West 2000)).

At trial, the evidence showed that the victim, Ms. Walters, who was J.W.'s mother, and her boyfriend Christopher Morris had lived together for five years.   In late August 2000, they moved from their one-bedroom apartment into a two-bedroom apartment in the same complex at 1931 Prairie Square, Schaumburg, Illinois, so that J.W., who was 13 years old at the time, could live with them.   J.W. had previously lived with Ms. Walters' grandmother in Chicago.   Ms. Walters pressured J.W. to move to Schaumburg because she was concerned that J.W.'s friends were a negative influence on her and that J.W. was going to get pregnant while she was young.   J.W. did not want to move in with her mother, but she felt she had no choice.   She moved to Schaumburg on Monday, August 28, 2000.

Her first day there, J.W. made an entry in her diary about killing her mother with a knife.   She wrote the following, striking out certain portions:

“go and hide in the hall stab her in the back intill [sic] she dies come back in the house and call grandma. tell her my mom said she was going out to the car to get something that was like 20 minutes ago.  I'm going to see where she's ate because she asked me to clean my glass mirror off but I don't see the windex leave out Oh ma ma-ma Dead grandma.   Help somebody knock on someones door help my mom's has got stabed.   Oh let me go get my folder out of her trunk while she's out their [sic] I'm about to she [sic] where she is Oh grandmama mama has got [illegible word] layene [sic] on the floor dead.”

During the rest of the week, J.W. described that Ms. Walters “would wake up mad all the time” and “holler at [J.W.] for no reason.”   She explained:

“And she'd get mad about the dishes and I don't even know how to cut the dishwasher on.   And then she get [sic] mad about my clothes and ask me why I can't be like other people, about something with some shirts.   And just wanted me to be and dress like somebody I can't be.”

Ms. Walters did not hit J.W. during the week they lived together.

On Friday, September 1, 2000, J.W. took a knife from the kitchen and put it inside her black purse.   That day she thought about using the knife to kill her mother in the hallway, but she “didn't have the guts.”

That night Ms. Walters' young cousins, nine-year-old Asia Ashley and eight-year-old Devonte Taylor,¹ spent the night at Ms. Walters' apartment.   Ashley slept with J.W. in her unfurnished bedroom that night.   On Saturday morning, September 2, 2000, Ashley and Taylor watched television until J.W. awoke and fed them.   According to J.W., her mother got up around 1 p.m. “with a [sic] attitude” and started “hollering” at J.W. about breakfast for Ashley and Taylor.   The lights went out in the apartment, and Ms. Walters called someone to fix the problem.   Ms. Walters showered and dressed for a medical appointment.   Meanwhile, J.W. took the knife from her black purse and put it in the back of her pants.

After she was dressed and ready, Ms. Walters went out to her Nissan Altima in the parking lot.   Ms. Walters called back to the house for her sunglasses.   J.W., who had been playing in her room with Ashley and Taylor, went outside.   Ashley thought she heard J.W. slide something off of a table before going outside.

J.W. was having second thoughts about stabbing her mother when she came outside, but she knew her mother “was gonna holler if [J.W.] wouldn't of said nothing and came downstairs.”   J.W. approached the driver's side of her mother's car and knocked on the door.   Ms. Walters “had a [sic] attitude and she was just like, what, what.” J.W. opened the door and began stabbing her mother, first in the head, then in the arm.   J.W. and Ms. Walters struggled.   J.W. asked Ms. Walters if she loved Morris more than she loved J.W. and J.W.'s brother, Edward.   Ms. Walters did not answer the question.   She told J.W. to “stop.”

At one point, Ms. Walters got the knife away from J.W. and stabbed J.W. in the hand.   Ms. Walters, who was lying with her head near the passenger's door, opened the door and dropped the knife to the ground.   J.W. went around the car and picked up the knife.   Ms. Walters pulled J.W.'s hair.   J.W. stabbed her mother more, eventually stabbing her in the stomach, where the knife got stuck.   Ms. Walters was lying on the floor, underneath the dashboard, gasping for air-breathing “[l]ike she had asthma.”   Ms. Walters scratched J.W. on the neck and said “lord, let me die.   And if you want to kill me, you need a bigger knife.”

Fanlam Jing, a resident of 1931 Prairie Square, was in her car in the parking lot at approximately 3 p.m. on September 2, 2000.   She noticed another car parked on her left-hand side, about two spaces away.   A person was seated in the passenger's side.   Her first impression was that the person was a young male with short dark hair. However, she could only see the person's head and was not sure whether her first impression was correct.   She heard a slight noise and felt “a little uncomfortable and perhaps a little uneasy” when she noticed the person in the car.

J.W. was out of the apartment for 15 to 20 minutes before Ashley and Taylor noticed her absence.   They looked through the apartment for her, and when they were unable to find her, they stepped out onto the apartment's balcony.   They saw Ms. Walters and J.W. inside Ms. Walters' car.   The two appeared to be wrestling.   Ashley and Taylor threw berries at Ms. Walters' car to try to get J.W.'s attention.   About the same time, two boys, Mike and Evan Harris, rode by on bicycles.   J.W. got out of the car and yelled that someone had stabbed her mother.   Ashley and Taylor called 911.

J.W. went back into the apartment.   She made two calls and washed her hands and her face, which had blood “all over” them.   She changed out of her white capri pants, which also had blood on them.   She went into the kitchen and got a bread knife, which she took outside to the car.   Ms. Walters was still lying on the floor, gasping for air.   Her eyes were open and her fists balled up.   J.W. climbed into the car and tried to stab her mother some more.   Because the knife was not penetrating well, J.W. used the knife to cut her mother, rather than to stab her.

Ms. Walters was still breathing when J.W. decided to go back upstairs.   J.W. put the bread knife inside a black garbage bag with her clothes.   J.W. then took a third knife, a steak knife, from the apartment.   When her cousins saw her getting the knife from the kitchen, she told them that she was “gonna [sic] kill whoever stabbed [her] mother.”   J.W. took the steak knife out to the car where her mother was lying, still in the same position, still gasping for air.   J.W. stabbed her mother “a little” with the third knife “from her thighs on up.”   Ms. Walters was still gasping for air but “a little slower.”   J.W. began crying and then went back upstairs and threw the knife in the kitchen.   One of her cousins picked up the knife and threw it in the garbage can.

At 3:57 p.m., the Schaumburg police and fire departments received a call regarding a stabbing at Walden Woods Apartments, at 1931 Prairie Square.   Paramedics Steven Lafin and Eric Marto arrived at the scene and were directed by two boys on bicycles to a car in the parking lot.   Lafin looked inside the car and saw “an African-American female with her upper body, her head and chest on the passenger's side with her head down towards the floor on the passenger's side with her feet up on the driver's side seat.”   Officer Mike Carroll, a Schaumburg police officer, who arrived at about the same time, “observed the female [occupant] slumped over from driver side into the passenger seat near the floor board area passenger seat of the vehicle.”   There were large amounts of blood in the interior of the car, and some had leaked from the car onto the ground.   A black handle was protruding from Ms. Walters' abdomen.

The paramedics removed Ms. Walters from the car.   She was still breathing, but she had no pulse.   She had “multiple lacerations and stab wounds to the throat, the chest area, the left forearm had multiple lacerations to the front side of her forearm, both hands had stab wounds.”   At one point, her heart stopped, but the paramedics were able to get her heart beating again.   They transported Ms. Walters to Northwest Community Hospital, where she was treated by Dr. Robert Rao.

When Rao, a general and trauma surgeon, first encountered Ms. Walters in the emergency room at Northwest Community Hospital, she had no vital signs and “was dead or very close to dead.”

“[S]he had multiple stab wounds, especially in the arms.   Her arms looked sort of like hamburger.  * * * With large amounts of blood coming out of both arms.   She had multiple little stab wounds to the chest and abdomen.   And there was a large knife sticking out of her abdomen or the handle sticking out of the abdomen.   And she had a tube in her neck, a tracheostomy tube that was breathing for her.”

Rao and other doctors were able to get Ms. Walters' pulse back and her heart beating again, but only for about 10 minutes.   Ms. Walters was pronounced dead at 5:34 p.m. At some point, Rao removed the knife from Ms. Walters' abdomen.   He did not suffer any cuts while doing so.

In the parking lot at 1931 Prairie Square, Carroll noticed three children nearby.   One of them was J.W.;   she was crying.  “[H]er shirt had blood on it,” front and back.   She also had cuts on her hands.   She told Carroll and Schaumburg police detective Vince Liberio that she did not know who had hurt her mother.   She said “she had seen a female-female teenager approximately 14 years of age running westbound from the area of the vehicle when she had returned from the apartment to retrieve sunglasses for her mother.”   J.W. requested to use the restroom, and Carroll took her into the apartment.

Inside the apartment, J.W. led Carroll to a hallway bathroom, where, “on the tile floor[,] there were what appeared to be diluted blood droplets on the tile floor.”   Carroll did not allow J.W. to enter that bathroom;  instead, J.W. used the bathroom adjacent to the master bedroom.   Carroll did a cursory search of the rest of the apartment and “observed an open garbage can basket * * * on the kitchen floor,” on top of which a bloody knife was lying.   While in the apartment, J.W. removed the bread knife from the black garbage bag in her bedroom and put it in the pillow case of her pillow.   Carroll and J.W. left the apartment, and the apartment was sealed off.

At approximately 4:30 p.m., on September 2, 2000, Karen Brzezicki, a paramedic with the Schaumburg fire department, arrived at the scene in a second ambulance.   Brzezicki examined J.W. and noticed “lacerations on her right hand down the center of her palm.   On her left hand she had another laceration toward the outside of her hand * * * by her small finger.   She also had minor lacerations to her face toward * * * her chin area.”   Additionally, J.W. had an abrasion on her left arm.   Brzezicki and her partner bandaged J.W.'s hands.   Carroll rode inside the ambulance with J.W. while she was transported to Alexian Brother's Medical Center for treatment of her hands.

At the hospital, Hope Carroll, the triage nurse, did not notice any abrasions or lacerations on J.W.'s face.   J.W. received seven stitches in her left hand and three stitches in her right hand.   Schaumburg youth officer Mike Degiulio went to Alexian Brothers Medical Center to meet with J.W., who “was the number one witness to this crime.”   He took limited custody of her because she had no family present.   J.W. told Degiulio that she did not know who had hurt her mother.   Degiulio took J.W. to the Schaumburg police department where she remained until her maternal relatives arrived at approximately 11:30 p.m. That night J.W. stayed at her maternal great grandmother's house in Chicago.

Morris, who had been in Crystal Lake, Illinois, for a softball game and a barbecue on September 2, 2000, went to the Schaumburg police department immediately upon receiving a message from the police that evening.   He was informed that Ms. Walters had been killed.   He consented to a search of his vehicle and his apartment.

On September 3, 2000, Thamrong Chira, a forensic pathologist with the Cook County medical examiner's office, performed the autopsy on Ms. Walters.   Chira noticed “123 incise and puncture wounds and two of the abrasion wound [sic]” and 87 stab wounds.   Ms. Walters had defensive wounds on her hands, arms, and legs.   The wounds were consistent with the knife that was recovered from Ms. Walters' abdomen and the two that were recovered from her apartment.   Chira opined that it was possible that the wounds were inflicted by “a 13 year old girl approximately 5 [feet] tall, 100 pounds.”   Chira determined the cause of death to be “multiple stab and incise wounds” and the manner of death to be “homicide.”

In the afternoon on September 3, 2000, J.W. and her brother, Edward, were brought to the Schaumburg police department.   J.W. was given food.   Then, she was interviewed by Liberio and Degiulio.   Again, she told them that she did not know who stabbed her mother.   They took her outside to the parking lot, and she demonstrated how she found her mother.

Morris again consented to the search of his apartment, and at 3:40 p.m., Schaumburg Detectives Czerniak and Somski went to the apartment to “look for anything that may be related to the homicide.” They found “a small knife” in the dishwasher.   They found “a larger bread type knife” that appeared to have blood on it inside a pillow case in J.W.'s bedroom.   Czerniak also discovered J.W.'s diary inside her bedroom closet.   Czerniak contacted Liberio about what had been found in the apartment.   The items were brought to the police department.

Some of J.W.'s maternal family members were contacted and arrived at the police department between 9 and 9:30 p.m. At approximately the same time, Assistant State's Attorney Mary Beth Kinnerk arrived.   She met with J.W. and told J.W. that she was a prosecutor and was not J.W.'s attorney.   She “Mirandized” J.W. by reading each of the Miranda rights and having J.W. explain what each meant.   She further explained to J.W. that she could be tried as an adult for the murder of her mother.   J.W. indicated that she understood her rights and that she could be tried as an adult.   She signed a waiver of rights.

Kinnerk asked J.W. if she wanted to see her maternal relatives.   When J.W. said she did not want to see those relatives, Kinnerk asked whether there were any relatives she wanted to see.   J.W. said she would like to see Jerilene Mitchell, whom she called Aunt Babs;  her father, Gilbert Mitchell;  or her paternal grandmother, Arlene Mitchell.

J.W.'s father was contacted by telephone.   He gave permission for continued conversations with J.W. After arrangements were made for police cars to pick up Jerilene and Gilbert Mitchell, Kinnerk asked J.W. if she wanted to continue talking or if she wanted to wait for one of her paternal relatives to arrive before continuing the conversation.   J.W. said she would continue speaking with Kinnerk.   At that time, J.W. confessed to stabbing her mother.   Kinnerk asked J.W. whether she would be willing to make the statement again so that it could be videotaped.   J.W. said she would.

Between 12:30 and 1 a.m., Jerilene Mitchell arrived at the police department.   J.W.'s father did not come to the police department.   When he was told that Jerilene Mitchell was on her way to the police department, Gilbert Mitchell said he did not need to be there as well.   Jerilene Mitchell spoke with Kinnerk, Liberio, and Degiulio, who informed her that J.W. had agreed to give a videotaped statement.   Jerilene Mitchell was allowed to see J.W. Timothy Bennett, a shorthand reporter and videographer, saw Jerilene Mitchell and J.W. together while he prepared the video equipment.   He did not hear whether they were saying anything, but he saw their mouths moving.

At about 2:30 a.m., Bennett began taping J.W.'s statement.   J.W., Kinnerk, Degiulio, and Jerilene Mitchell were in the room and are visible on the videotape.   Only Kinnerk and J.W. spoke during the taping.   Kinnerk first reviewed J.W.'s rights with her.   Then, J.W. again confessed to killing her mother.

Several days later, on September 7, 2000, Morris consented to another search of his apartment.   He also went to the apartment that day and saw that three knives were missing from the apartment.   They were the three knives that J.W. had used in stabbing her mother.

At trial, the State's evidence consisted of a significant amount of physical evidence, including photographs of the car after Ms. Walters' body was removed, photographs of “reddish stains [found] on the wall and floor” inside the apartment, photographs of the victim, the three knives that J.W. used to stab her mother, the diary, J.W.'s bloodstained clothes, and various items recovered from inside and around the car.   The State also played a videotape of the crime scene and a videotape of J.W.'s confession for the jury.

J.W.'s palm prints were found on the door of Ms. Walters' car and her fingerprints on one of the knives she used in the stabbing.   Her blood was found on a black garbage bag, the bread knife, and one of the kitchen drawers in the apartment.   J.W. could not be excluded as a contributor to bloodstains on one of the car's door handles and on the steak knife.   Morris' DNA was not found on any of the items tested by the crime lab.

Jean S. Brundage, a document examiner with the Illinois State Police Crime Lab, compared the handwriting on the diary page that described the killing with a writing exemplar given by J.W. Brundage's “findings were inconclusive.”   She “found isolated similarities as well as discrepancies between the known and the questioned writing[;] the absence of directly comparable repetitions [sic] as well as the wide rang [sic] of variations within the questioned writing preclude[s] a definite conclusion.”   Brundage requested another writing exemplar.   Her examination was still inconclusive.   She noted, however, that the samples “were more carefully written than what the questioned writing was.  * * * [I]t [sic] was with more control.   There wasn't as much variation as far as the slant, the size or the formation of some of the letters.”   A request for additional writing exemplars went unanswered.

At the close of all of the evidence, the jury found J.W. guilty of first degree murder.   After a sentencing hearing, the trial judge sentenced J.W. to juvenile detention.   He also imposed a 35-year adult sentence, which was stayed pursuant to the EJJ statute (705 ILCS 405/5-810(4)(ii)(West 2000)).

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

[The following material is nonpublishable under Supreme Court Rule 23].

J.W.'s first claim of error is that the trial court erred in admitting her oral statements to Kinnerk, including the videotaped statement.   Before trial, J.W. moved to suppress the three confessions she made at the Schaumburg Police Department on September 3, 2000 and the morning of September 4, 2000.   She claimed that the statements were not made voluntarily and that she did not voluntarily, knowingly, or intelligently waive her Miranda rights.   She also complained that she was not permitted to see a concerned adult prior to making the statements.   The trial court conducted a hearing on the motion.

At the hearing, Degiulio, Liberio, and Kinnerk testified for the State.   Their testimony revealed the following.   On September, 2, 2000, Degiulio met J.W. at Alexian Brothers Hospital, where she was being treated for cuts on her hands.   Degiulio introduced himself and explained that he was a youth officer.   None of J.W.'s family was present so Degiulio took custody of J.W. and transported her to the Schaumburg Police Department.   That night, Degiulio and Liberio spoke to her about the day's events.   She denied any involvement in her mother's death.   At approximately 11:30 p.m., some of J.W.'s maternal family members arrived at the police department, and J.W. left with them.

On the afternoon of September 3, 2000, J.W. was brought back to the Schaumburg Police Department.   She sat in an interview room for a couple of hours, and Liberio and Degiulio checked on her frequently.   The door to the interview room was kept unlocked.   J.W. was given food.   She was not handcuffed or under arrest.   At that time, she was the “main witness.   She was the last person to see her mother alive.”

At 5:35 p.m., Degiulio and Liberio interviewed J.W. In the interview room, Liberio mirandized J.W. Liberio read each of her rights to her, and J.W. explained what each meant.   J.W. indicated she understood her rights and wished to talk with the officers.   J.W. signed and Degiulio and Liberio witnessed J.W.'s signature on a Miranda waiver form.

Liberio spoke with J.W. for approximately 20 to 25 minutes regarding the events of September 2, 2000.   J.W. denied any involvement in her mother's death.   Then, the officers and J.W. went to the back parking lot to allow J.W. to demonstrate how she had found her mother.   All three returned to the interview room.   The officers suggested taking a break, but J.W. wanted to continue talking.

Sometime that afternoon, Degiulio and Liberio were advised that a diary and knife had been recovered from J.W.'s bedroom.   At approximately 6:30 p.m., Liberio was presented with the knife and diary.   The officers returned to the interview room.   Liberio showed J.W. the knife, explained that it had been found in a pillowcase in her bedroom, and told her that they “would be checking for prints and typing the blood to see if it matched her mother.”   He also showed J.W. the diary, which had her name on it.   J.W. admitted that the diary was hers.   Liberio asked her to read a certain passage, and she would not.   Liberio read the passage, told her that he “knew she had killed her mother,” and asked her if she wanted to tell him why. J.W. then made inculpatory statements to the officers.

Degiulio advised Liberio that they needed to take a break.   At that point he notified youth officer Gerard that J.W. had made inculpatory statements and that her family should be notified.   Gerard notified the family.   Degiulio and Liberio were advised that J.W.'s maternal family members, with whom “she pretty much lived,” were en route to the police department.   Liberio contacted the State's Attorney's office and spoke to Kinnerk.

At some point after making the inculpatory statements, J.W. asked about her brother, who was also at the police station.  “She wanted to let her brother know what she had told [Degiulio and Liberio], and she wanted to know what her brother's reaction was to her inculpatory statements.”   Liberio informed Edward of J.W.'s confession and explained to J.W. that Edward “had no reaction.   He was in shock.   He made no comments.”   J.W. was not allowed to see her 16 year old brother.

J.W.'s maternal family members arrived at the police department between 9:00 and 9:30 p.m. J.W. was informed of their arrival.   She explained that she did not want to see them because “they wouldn't understand.   She was afraid of them.   She didn't want to see them because basically she killed her mother, and it was their side of the family.”  “[S]he was concerned for her safety.”   Even when Degiulio advised J.W. that he would be present when she met with her family members “she still was adamant about the fact that she absolutely did not want to see members on her mother's side.”   Liberio met with the family members and told them about what had happened.   They requested to see J.W., and he informed them that J.W. “was extremely scared and was adamant about not wanting to see * * * them.”

Also between 9:00 and 9:30 p.m., Kinnerk arrived at the police department.   J.W. and Kinnerk met in a conference room.   Kinnerk introduced herself as a prosecutor and explained that she was not J.W.'s lawyer.   Kinnerk advised J.W. of her Miranda rights.   She followed a similar procedure as Liberio had, having J.W. explain what she understood each right to mean.   J.W. again signed the waiver form.   Kinnerk signed it as well.   J.W. also signed an additional statement written at the bottom of the form, which said, “I understand that because the charge is 1 murder a judge may decide after a hearing that I may be tried as an adult in adult court.”

Kinnerk also told J.W. that her maternal relatives were present at the police department.   J.W. again indicated that she did not want to see those relatives.   Kinnerk inquired whether there were any other family members that J.W. would like to see.   She said she would see her Aunt Babs, Jerilene Mitchell;  her father, Gilbert Mitchell;  or her paternal grandmother, Arlene Mitchell.   J.W. was unable to provide a telephone number or address for her father.

Degiulio telephoned Gilbert Mitchell at approximately 10:00 p.m. and told him that J.W. was at the police department and had “made some statements that she was involved in her mother's death.”   Degiulio asked Gilbert Mitchell to come to the police station.   Gilbert Mitchell said that he could not.   Degiulio asked whether Gilbert Mitchell would allow them to continue speaking with J.W. Gilbert Mitchell said “that would be fine.”   Degiulio told Gilbert Mitchell that he would call again.   Degiulio informed Kinnerk that he had talked to Gilbert Mitchell, who was unable to come to the police department at that time, but had approved continued conversations with J.W.

At approximately 10:15 p.m., Degiulio telephoned Arlene Mitchell.   He informed Arlene Mitchell that J.W. was at the police department and they were speaking with her.   He asked Arlene Mitchell whether she was able to come to the police department, and she explained that she could not because she “was caring for an autistic child and also had a heart condition.”   Arlene Mitchell advised Degiulio that Jerilene Mitchell was at a movie.   She gave Jerilene Mitchell's pager number to Degiulio.   Degiulio called the number, but he never spoke to Jerilene Mitchell by telephone.

After making those telephone calls, Degiulio spoke with his supervisor and Kinnerk, who decided that police cars should be sent to the homes of Gilbert Mitchell and Jerilene Mitchell.   Degiulio called Gilbert Mitchell and informed him that they had not yet located Jerilene Mitchell.   He inquired whether Gilbert Mitchell would be willing to come to the police department if they sent an unmarked police car to pick him up.   Gilbert Mitchell said he would.   At about 10:30 p.m., the two cars were dispatched.

Kinnerk asked J.W. if she wanted to wait until one of her relatives was present or if she wanted to go ahead and talk with Kinnerk about “what had occurred with her mother.”   J.W. responded that she was “fine with proceeding.”   Kinnerk then spoke with J.W. for about 45 minutes.   J.W. made inculpatory statements.   Near the end of the conversation, Kinnerk asked J.W. if she would be willing to have her statement videotaped.   J.W. said she would.   Degiulio telephoned Gilbert Mitchell again at about 11:50 p.m. This time, he informed Gilbert Mitchell that Jerilene Mitchell had been located and was on her way to the police department.   Degiulio told Gilbert Mitchell that he was still welcome at the police department, and Gilbert Mitchell responded that “it was fine to have his sister.”

Jerilene Mitchell arrived at the police department at approximately 12:40 a.m., on September 4, 2000.   Degiulio, Liberio, Kinnerk, and Jerilene Mitchell gathered in a conference room, where Kinnerk explained the status of the investigation to Jerilene Mitchell.   Kinnerk and Jerilene Mitchell “talk[ed] back and forth concerning what had occurred on the date of September 2nd as well as what [J.W.] had informed [the police]” for about half an hour.   Jerilene Mitchell was then allowed to see J.W. for half an hour to an hour while a video camera was set up to film J.W.'s statement.   J.W. still agreed to give that statement after she spoke with Jerilene Mitchell.   When Kinnerk asked Jerilene Mitchell whether she would agree to the videotaped statement, Jerilene Mitchell said that “whatever [J.W.] wants to do, she would support.”   From 2:30 a.m. until 3:15 a.m., J.W. gave a videotaped statement concerning the death of her mother.

Liberio did not threaten J.W. in any way.   Nor did he “ever stand up, get close to her, and try to intimidate her in any way.”   He never said that “he was getting really mad” at J.W. Nor did he raise his voice at J.W. or tell her that if she did not tell the truth “she would be locked up for a long time.”   Liberio did not tell J.W. that her maternal family did not want to see her because they were “pretty upset” with her.   At all times, during the interviews, Liberio was three to four feet away from J.W. Kinnerk did not tell Jerilene Mitchell that she could not talk or intervene during the videotaping.   Nor did Kinnerk or Liberio tell J.W. that making a videotaped statement would help her out.   Kinnerk explained that the videotape was “to accurately depict what took place in the statement that [J.W.] was gong to make.”   Kinnerk once again advised J.W. of her rights during the videotaped statement, and J.W. signed a consent to give the videotaped statement.

Capucine Jackson, the 25 year old cousin of J.W., testified for the defense that around 8:00 or 8:30 p.m. on September 3, 2000, she went to the Schaumburg Police Department with Debra Walters, Natalie Hilton, and Lakesha Barnes after Debra Walters received a call that “[t]hey need[ed] to tell her something about the case.”   Jackson inquired about seeing J.W. A white male police officer first told Jackson that “they were going to bring [J.W.] to see [Jackson and the others].”   The family was later moved and told that they were being prepared to see J.W. They had been advised that J.W. had implicated herself in her mother's murder;  nevertheless, they requested to see J.W. They waited an hour or two, at which time the police informed them that J.W. did not want to see them.   They were told that J.W. only wanted to see her father's side of the family.   The family remained at the police department for 10 to 15 minutes still trying to see J.W., but the officer told them that J.W. refused to see them.   Jackson claimed she saw J.W.'s shoes outside of an interview room.

Gilbert Mitchell testified that on September 3, 2000, he received a telephone call from a Schaumburg police officer, who asked him to come to the police department because J.W. needed someone there with her.   The officer never told him that J.W. was being questioned by the police or that she had implicated herself in her mother's murder. Gilbert Mitchell did not ask the officer why J.W. was at the police department.   Instead, Gilbert Mitchell told the officer that he did not have any transportation.   The officer offered to send someone to pick up Gilbert Mitchell.

Gilbert Mitchell called the police department because he was “skeptical” that the call had actually come from the police.   He feared it might have been the killer.   He was unable to talk to the officer directly, but the officer called him back and confirmed that someone would come pick up Gilbert Mitchell.   The officer also told Gilbert Mitchell that J.W. had asked for Aunt Babs, Jerilene Mitchell.   Gilbert Mitchell made no comment based on that information. Gilbert Mitchell called back in about an hour and a half or two hours because no one had arrived to take him to the police department.   The officer told him that “[t]hey had picked up Babs and that they didn't need [him].”

At approximately 4:00 a.m., Gilbert Mitchell received a call from his mother, who told him that J.W. “was being held for the crime.”   Gilbert Mitchell admitted that he had previously been on probation and was sentenced to five years in the Illinois Department of Corrections for auto theft.   Gilbert Mitchell was released from custody on February 28, 1993.   Gilbert Mitchell further admitted committing an assault in Naperville in 1994.   He received probation and counseling, which he successfully completed.

Jerilene Mitchell, J.W.'s Aunt Babs, lived in the same house with J.W. until J.W. was seven months old.   At that time, J.W. and her mother moved in with Anna Jones, J.W.'s maternal great grandmother.   Jerilene Mitchell never lived with J.W. again and confessed that she had not “seen [J.W.] during her growing process.”   She did, however, see J.W. six or seven times each year after J.W. turned 11 when J.W. came over on weekends for “family days.”   Before seeing J.W. in September 2000, Jerilene Mitchell had last seen her in May.

At about 11:00 p.m., on September 4, 2000, Jerilene Mitchell received a page from an “847” number, which she tried unsuccessfully to call back.   At her home, her mother informed her that Schaumburg officers were on the way to get her.   About 15 minutes later, the officers showed up.   Jerilene Mitchell left with the officers at about 11:45 p.m. In the car, she asked the officers whether they were going to get her brother, Gilbert Mitchell, “[a]nd they said no, we don't need him.”

At the police department, the police told her that someone would come to talk to her.   Jerilene Mitchell waited in a room alone for about an hour until a man and woman came into the room.   They explained what had happened.   They also explained the videotape procedure.   They told Jerilene Mitchell that she was “a part of this confession.”   The woman told her “to have a straight face and to be quiet, don't say anything” during the taping.   Jerilene Mitchell asked to see J.W., and the woman said she could for “a brief minute.”

The police officers took Jerilene Mitchell to a room where J.W. was.   Jerilene Mitchell and J.W. “hugged and cried for like three minutes and then the officer came in.”   Jerilene Mitchell and J.W. did not talk about why J.W. was there.   Jerilene Mitchell testified that during the videotaping, J.W. appeared “[l]ike as though she had been forced.”   Jerilene Mitchell said that the first time she heard J.W. tell what had happened was during the videotaping and that she “was shocked at the things that [J.W.] was saying.”

J.W. testified that in September 2000, she was 13 years old, in the eighth grade, and living with her mother at 1931 Prairie Square in Schaumburg.   Before that time she lived with maternal great grandmother.   On September 3, 2000, when the police came to pick her up, J.W. was getting dressed.   She traveled to the police department in a car with police officers.   They arrived at approximately 2:30 or 3:00 p.m. At the police department, they put her in the same conference room where she had been the night before.   This time they told her that she could not wear her shoes in the room so she took them off and “put them outside on the wall by the door.”   She was in the room for about an hour with the door closed and locked before some officers came in and brought her food.   She was alone another half hour before Liberio came in and asked her questions about “the case.”   He told her he wanted to “get some more information” about her mother's death.

During the interview, two officers were present.   One officer was standing, and the other was sitting.   They stayed about two feet away from J.W. After about 10 minutes, the officers took J.W. to a car, where she demonstrated how she had found her mother.   They returned to the conference room, and J.W. took her shoes off again.   The officers stayed in the room questioning J.W. for another five minutes.   Before they left the room, they told J.W. that “it didn't sound right about * * * what [she] saw.”   The officers then went in and out of the room for a while, telling J.W. they would be back to question her.

At some point, J.W. asked the officers where her brother was and whether she could see him.   She asked why she could not be in the same room with her brother.   They told her that it was “[b]ecause [they] were minors or something like that.”   J.W. was not allowed to see her brother.

At one point, four officers came in with some papers for J.W. to sign.   She claimed she did not get a chance to read the papers and she was not told about them.   Nevertheless, she signed the papers.   When she asked to read them, one of the officers just “took them away.”   One of the officers left with the papers.   Another officer remained for about two minutes.   Liberio came into the room and read J.W. her rights, but she was not asked to explain the rights in her own words.   Instead, she was “told what those rights meant.”   J.W. knew what a lawyer was;  nevertheless Liberio explained to her that “the lawyer is somebody who will help [her] out in Court.”   She felt like Liberio made it seem as if the officers could also help her out in court.   At one point, J.W. started crying.   Then, Liberio started “screaming in [her] ear” that if she did not tell the truth he was going to lock her up.   This conversation lasted “for hours.”   During the questioning, Liberio came in with a knife and said it “was the knife that [she] used.”   J.W. denied it.

J.W. asked to call home, but was told that she could not.   Liberio told J.W. that she was the one who killed her mother.   She cried and told him she was not.   This went on “for hours.”   J.W. asked about her family five or six times.   One of those times, Liberio said he had called them himself.

J.W. was moved into a larger conference room.   The room had a blackboard on which her family's names and addresses were written.   Her name had a circle around it.   She was advised that her maternal family had arrived at the police department.   Liberio told J.W. that her family did not want to see her because they were upset with her.  “[Liberio] kept screaming at [J.W.] and telling [her] that [she] couldn't see [her family], [she] wasn't going home and [she] was coming here.   So [she] was just like okay okay, if you said I did it then I did it.”   She said she confessed “[b]ecause [she] felt like [she] had no choice.”

J.W. stated that she never told the police she did not want to see her maternal family.   The officers said they would call J.W.'s father, and she gave them her father's mother's telephone number.   They returned and told J.W. that her father did not want to come, but that they had called her aunt Jerilene Mitchell.

Kinnerk came into the conference room.   J.W. admitted that Kinnerk asked her whether she wanted to wait for her family to arrive before continuing to talk.   J.W. said she “didn't know.”   J.W. said she felt like she had no choice but to talk to the police.   The only other time she had heard the Miranda warnings was on television, “but [she] never knew what they really meant, but [she] really knew them at the police station.”   J.W. told Kinnerk the story that Liberio had told about J.W. killing her mother.   Then “Liberio said that he want [sic] the video taken because on paper it could seem like he making [sic] it up and it would be better off for [J.W.] in court if [they] video-taped it.”   J.W. stated that she only got to see Jerilene for “[a] minute or two” before the videotaping.   J.W. did not have a chance to talk to Jerilene during that time.

On cross-examination, J.W. said that she read through the waiver form.   She admitted that she told Liberio that the diary was hers and that when Kinnerk read her the first two Miranda warnings and asked her whether she understood, she said yes.   J.W. also said no when Kinnerk asked her whether she wanted a lawyer.   J.W. claimed she said no because she “thought [the police] were going to help [her].”   J.W. read over the waiver form a second time when Kinnerk gave it to her.   She signed it again and also signed the additional portion about a possible trial in adult court.   She admitted that Kinnerk asked her if she would agree to making a videotaped statement and she did.   At some points in her testimony, J.W. admitted that she understood her rights.   At other points, she claimed she did not.

The parties stipulated that Dr. James Patrick Corcoran was an expert in forensic psychiatry.   Corcoran was asked by defense counsel to do “an evaluation of [J.W.'s] ability to understand and knowingly and intelligently waive her Miranda Rights.”   He interviewed J.W. for two hours on September 22, 2000, at the juvenile detention center.   From his initial interview, Corcoran concluded that J.W. did not understand the concept of a right.

Corcoran interviewed J.W. again on October 6, 2000, for about an hour and a half.   Based on that interview, Corcoran surmised that J.W. was “not a very bright girl.”   Corcoran opined that J.W. was “unable to understand or knowingly waive her rights under Miranda” at the time of her arrest and questioning.   His opinion was based on several factors:  (1) academic deficiency;  (2) low chronologic age;  and (3) the prospect of facing extremely serious charges.

Corcoran did not review any police reports in reaching his conclusion.   He admitted that “in general more kids than not across the board are able to understand and waive their Miranda Rights.”   He agreed that if when told that she had the right to remain silent a person explained that meant if she did not want to answer, she would not have to, that person “theoretically” understood that she did not have to answer:

J.W. told Corcoran that she was treated well by the police.   She never told him that she was threatened.   Corcoran could not recall if he was ever told that the police told J.W. what to say.   He further admitted that a 13 year old could typically “understand the gravity of a murder charge.”   Corcoran never saw the diary.

The defense also called Liberio as a witness.   He testified that on September 3, 2000, at 9:45 a.m., he spoke with Amber Jackson, one of J.W.'s relatives, by telephone.   Jackson told him that J.W.'s father's name was Gilbert Mitchell.

The State recalled Marybeth Kinnerk in rebuttal.   She testified that she informed J.W. of all her rights in their first meeting.

The parties stipulated that Dr. Peter M. Fink was qualified as an expert in the field of forensic psychiatry.   Fink evaluated J.W. to determine whether she “could understand her rights and knowingly and intelligently waive her rights.”   He conducted his evaluation on December 6, 2000.   He interviewed J.W. for three and a half hours.   In reaching his opinions, Dr. Fink considered a number of police reports, the videotaped statement and a transcript of that statement, J.W.'s Chicago public school file, J.W.'s health records, the diary recovered from J.W.'s bedroom, and his own contact with J.W. Fink also requested and relied upon a psychological test of J.W.

Fink described that some of J.W.'s statements to him were inconsistent with those she made to others, including Corcoran.   He explained that J.W. “was trying to * * * make it clear that she was unaware of the nature of her rights and what her potential protections were.   She was trying to convince [him] that she was essentially acting as a naive observer and participant, and was surrendering away things without knowing what was going on.”   J.W. tried to explain the diary “away in some fashion.”

Fink found that when she was questioned by Kinnerk in the early morning hours of September 4, 2000, J.W.'s responses to the questions regarding her rights were “clear and sufficient to indicate an understanding of what the State's Attorney was saying to her.”   A number of psychological tests were performed on J.W. Fink described that one of those tests showed him that J.W. would do what she wants even if it went “against norms and rules” of society.   The tests validated that “although uneducated in a formal sense, [J.W.] has an organized mind that's goal directed and purposeful, that has some very clear organizing principals.”   The tests showed that these features had been consistent for a long period of time and that J.W. showed no signs of severe emotional trauma.   Fink opined that J.W. understood and knowingly and voluntarily waived her Miranda rights on September 3 and 4, 2000.

The trial court granted the motion to suppress in part and denied it in part.   Specifically, the court suppressed statements made to the police officers before Kinnerk arrived at the police department.   While the court found that J.W. understood her Miranda rights at the time she made statements to the police, it also found that the police erred in contacting J.W.'s maternal relatives before contacting her paternal relatives.   Because the police did not attempt to contact J.W.'s paternal relatives, the trial court found “that there is a question * * * as to whether or not that statement given to the police officers was voluntary, and that statement to police prior to [Kinnerk's] arrival will in fact be suppressed.”

The trial court held the statements J.W. made to Kinnerk would be admissible at trial.   Again, it found that J.W. understood her Miranda rights at the time she gave those statements.   Further, it found that Kinnerk had corrected the one issue that raised a question as to the voluntariness of the first statement to police.   Kinnerk identified and located J.W.'s paternal relatives.   She received permission from the father to continue questioning.   She arranged for J.W.'s aunt to be brought to the police department.   She told J.W. that her aunt was on the way and then asked J.W. if she wanted to continue or if she wanted to wait for her aunt to arrive.   J.W. chose to continue.   When J.W's aunt arrived, Kinnerk arranged for J.W. and her aunt to meet with each other for about an hour.   Thus, the court held that J.W.'s statements to Kinnerk, both before and during the videotaping, were admissible.

J.W. argues that the trial court committed reversible error in not suppressing her statements to Kinnerk “because the State failed to establish that these statement [sic] were untainted by the initial involuntary statement J.W. made to police.”   She contends that because “there was no significant change in interrogators, location of interrogations, and all of the statement [sic] were taken over the course of less than nine hours, there was not a sufficient break in the stream of events” to attenuate the statements from the first statement, which the trial court found was involuntary.   J.W. further claims that Kinnerk's use of information gained from the police through the involuntary statement renders J.W.'s statements to Kinnerk involuntary and inadmissible.   J.W. urges us to apply a de novo standard of review “because the facts underlying the issue are not in dispute.”

The State responds first by claiming that the trial court erred in suppressing J.W.'s statement to the police.   It complains that “[t]he court nowhere appears to engage in the proper totality of the circumstances inquiry” and fails to “explain the nexus between failing to contact the correct relatives/failing to ask respondent if she wanted to continue, and the actual voluntariness of the confession.”   Then, the State argues that J.W. waived any objection to admission of her statements to Kinnerk by not arguing in the trial court that the statements were tainted by prior police conduct. Alternatively, the State contends that even if the court did not err in suppressing J.W.'s statements to police and J.W. did not waive her objection, her statements to Kinnerk were voluntary and untainted by the earlier statement because Kinnerk contacted J.W.'s paternal relatives and asked J.W. if she wanted to continue talking or if she wanted to wait for her aunt to arrive.

With regard to the State's waiver argument, we first note that it cites no authority in support of its contention that objecting to the voluntariness of all three statements was not sufficient to preserve the error now claimed.   Thus, we need not even consider the argument.   See People v. Jenkins, 333 Ill.App.3d 534, 540, 267 Ill.Dec. 383, 776 N.E.2d 755 (2002)(declining to consider minor's third argument because minor failed to cite any supporting authority).   In any event, in the trial court, J.W. claimed that all three statements were taken in violation of her constitutional rights because they were made outside the presence of counsel and induced by improper police conduct.   Her argument here is not so different.   She claims that her statements to Kinnerk should have been suppressed because they are the tainted fruits of the police misconduct that resulted in the first confession.   Thus, we consider the merits of J.W.'s claim.

We review de novo a trial court's ultimate determination of whether a confession was voluntary;  however, in doing so, we give great deference to the trial court's findings of fact and will reverse only if they are against the manifest weight of the evidence. See People v. Cunningham, 332 Ill.App.3d 233, 243-44, 265 Ill.Dec. 918, 773 N.E.2d 682 (2002);  People v. Golden, 323 Ill.App.3d 892, 900, 257 Ill.Dec. 280, 753 N.E.2d 475 (2001).   We consider the totality of the circumstances in determining whether a confession was voluntary (Cunningham, 332 Ill.App.3d at 243, 265 Ill.Dec. 918, 773 N.E.2d 682), and “[n]o single factor is dispositive” (Jenkins, 333 Ill.App.3d at 538, 267 Ill.Dec. 383, 776 N.E.2d 755).   The factors we consider include individual characteristics of the accused such as age, intelligence, background, experience, mental capacity, education, physical condition, and experience with the criminal justice system.   See Cunningham, 332 Ill.App.3d at 243, 265 Ill.Dec. 918, 773 N.E.2d 682;  Jenkins, 333 Ill.App.3d at 538, 267 Ill.Dec. 383, 776 N.E.2d 755;  Golden, 323 Ill.App.3d at 900, 257 Ill.Dec. 280, 753 N.E.2d 475.   We also consider the outside circumstances surrounding the interrogation, such as the legality and duration of the detention, the duration of the questioning, and the presence of any physical or mental abuse by the interrogator.   See Cunningham, 332 Ill.App.3d at 243, 265 Ill.Dec. 918, 773 N.E.2d 682;  Jenkins, 333 Ill.App.3d at 538, 267 Ill.Dec. 383, 776 N.E.2d 755;  Golden, 323 Ill.App.3d at 900, 257 Ill.Dec. 280, 753 N.E.2d 475.

Generally, we consider the same factors in determining the voluntariness of juvenile or adult confessions.   See People v. Morgan, 306 Ill.App.3d 616, 629-30, 239 Ill.Dec. 353, 713 N.E.2d 1203 (1999).   However, because the taking of a juvenile's confession is a “ ‘sensitive concern,’ ” “the ‘greatest care’ must be taken to assure that the confession was not coerced or suggested and that ‘it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.’ ”  Cunningham, 332 Ill.App.3d at 243, 265 Ill.Dec. 918, 773 N.E.2d 682, quoting In re G.O., 191 Ill.2d 37, 54, 245 Ill.Dec. 269, 727 N.E.2d 1003 (2000).   Accordingly, we also consider whether a “concerned adult,” such as a parent or a youth officer was present when the confession was made.   See Cunningham, 332 Ill.App.3d at 243, 265 Ill.Dec. 918, 773 N.E.2d 682.   Neither the absence of a parent or the absence of a youth officer is alone “determinative of voluntariness, but [either] is a material factor to consider.”  Cunningham, 332 Ill.App.3d at 243, 265 Ill.Dec. 918, 773 N.E.2d 682.  “The key is whether the absence of an adult interested in defendant's welfare contributed to the coercive circumstances surrounding the interrogation.”  Cunningham, 332 Ill.App.3d at 243, 265 Ill.Dec. 918, 773 N.E.2d 682.

Where one statement made by a defendant is found involuntary, “a broad application of the ‘fruit of the poisonous tree’ doctrine is mandated.”   People v. Johnson, 221 Ill.App.3d 588, 593, 164 Ill.Dec. 953, 584 N.E.2d 165 (1991).   This, however, does not mean that all “fruits” of the involuntary statement must be suppressed.  Johnson, 221 Ill.App.3d at 593, 164 Ill.Dec. 953, 584 N.E.2d 165.   Instead, “[s]ubsequently obtained evidence may be admitted as competent evidence where intervening events break the causal connection between the illegally obtained confession and the subsequently obtained evidence.”  Johnson, 221 Ill.App.3d at 593, 164 Ill.Dec. 953, 584 N.E.2d 165.   The State bears the burden of showing attenuation by clear and convincing evidence.   See People v. Graham, 214 Ill.App.3d 798, 812, 158 Ill.Dec. 161, 573 N.E.2d 1346 (1991).   We consider factors such as “(1) whether Miranda warnings were given;  (2) the proximity in time between the [police misconduct] and the confession;  (3) the presence of intervening circumstances;  and (4) the purpose and flagrancy of the police misconduct.”   People v. Vega, 250 Ill.App.3d 106, 116, 189 Ill.Dec. 872, 620 N.E.2d 1189 (1993).  “[W]hen a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether the coercion has carried over into the second confession.”  Johnson, 221 Ill.App.3d at 593, 164 Ill.Dec. 953, 584 N.E.2d 165.   With regard to the passage of time element, the amount of time is not determinative of attenuation;  instead the key is “whether any intervening events occurred during that time, and the nature of those events.”  Vega, 250 Ill.App.3d at 117, 189 Ill.Dec. 872, 620 N.E.2d 1189.   The subsequent confession must be “ ‘sufficiently an act of free will to purge the primary taint.’ ”  Vega, 250 Ill.App.3d at 116, 189 Ill.Dec. 872, 620 N.E.2d 1189, quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441, 454 (1963).   Ultimately, we consider any error in the trial court's admission of a confession in light of all of the evidence to determine whether that error was harmless.   See People v. Mitchell, 152 Ill.2d 274, 328, 178 Ill.Dec. 354, 604 N.E.2d 877 (1992)(holding that admission of a defendant's confession, if improper, is subject to the harmless error rule).

The trial court found that J.W. understood her Miranda rights when she confessed to the police.   Additionally, a youth officer was present during her statement;  J.W. was provided with food;  she was not physically or mentally abused by the police;  the interrogation was relatively short;  and J.W. never requested to speak with a parent or an attorney.   The only factor the trial court relied on in holding that J.W.'s statement to the police was involuntary was the failure of the police to contact her paternal relatives prior to confronting her with the diary and knife.   Although the totality of these circumstances indicates that the trial court may have erred in finding that J.W.'s confession to police was involuntary, this issue is not before us.   Instead, based on the trial court's finding that J.W.'s confession to police was involuntary because of the failure of police to contact J.W.'s paternal relatives, we must determine whether the subsequent statements J.W. made to Kinnerk were tainted by the involuntary statement.

J.W.'s initial meeting with Kinnerk followed approximately three hours after her statement to police.   Prior to asking J.W. any questions regarding the murder, Kinnerk asked J.W. if she wanted to see her maternal relatives, who had arrived at the police department. J.W. was adamant that she did not want to see those relatives, and Kinnerk asked if there were other relatives that J.W. would see.   J.W. identified her father, her Aunt Babs, and her paternal grandmother.   Officer Degiulio contacted all three individuals.   J.W.'s father did not want to come to the police department even after Degiulio informed him that J.W. had implicated herself in her mother's murder, but he gave his permission for the continued questioning of J.W. in his absence.

Two cars were sent to Chicago, one to pick up Jerilene Mitchell and one to pick up J.W.'s father.   Once Jerilene Mitchell was en route to the police department, Degiulio contacted J.W.'s father again, who expressed that the presence of Jerilene Mitchell, would be sufficient.   Kinnerk asked J.W. if she wanted to continue talking or wait for Jerilene Mitchell.   J.W. chose to continue with her statement.   There is no evidence that J.W. was coerced to continue speaking to Kinnerk and, in fact, the trial court found that J.W. understood and waived her Miranda rights before speaking to Kinnerk.

J.W. argues, however, that her statements to Kinnerk were made under sufficiently similar circumstances as her statement to the police to render them tainted by the initial involuntariness.   Specifically, she complains that Liberio and Degiulio were still present when J.W. spoke with Kinnerk, the statements occurred in the same location, and all of the confessions occurred relatively close in time.   We disagree.   As noted above, these factors are determinative in circumstances where the initial statement was coerced.   See Johnson, 221 Ill.App.3d at 593, 164 Ill.Dec. 953, 584 N.E.2d 165.   In this case, the trial court did not find that J.W.'s statement to police was coerced by police activity.   It found only that there was a question of the voluntariness of the statement because of the failure of police to contact J.W.'s paternal relatives.   The presence of a concerned adult is only one factor that should be considered in determining the admissibility of a juvenile's confession.   See Cunningham, 332 Ill.App.3d at 243, 265 Ill.Dec. 918, 773 N.E.2d 682.   This one factor was corrected.   J.W.'s paternal relatives were contacted and while she declined the option of waiting for one of them to arrive before continuing the interview with Kinnerk, she did meet with her aunt Jerilene Mitchell for approximately one hour before the videotaped statement was made.   Moreover, J.W. was not questioned by Kinnerk in the same room that she confessed to police.   Nor was she questioned by the same interviewer.   Although Liberio and Degiulio were present during Kinnerk's interviews with J.W., there is no indication that they asked any questions during either interview, and in fact, the videotape reveals that Degiulio sat silently while the interview was conducted by Kinnerk alone.

Additionally, approximately three hours passed between the time J.W. confessed to police and when she first met Kinnerk.   While J.W. contends that this passage of time was insufficient to show attenuation, our focus on the events occurring during that time clearly reveals otherwise.   See Vega, 250 Ill.App.3d at 117, 189 Ill.Dec. 872, 620 N.E.2d 1189.   J.W. was given the option to see her maternal relatives, who had arrived in the meantime.   She refused to see them.   J.W. was consulted regarding which relatives she would like to see, and Kinnerk arranged for each of those relatives to be contacted.   J.W. was then given the option of continuing the interview or waiting for her paternal aunt to arrive.   J.W. chose to continue with the interview.

Similarly, we are unpersuaded by J.W.'s argument that the confessions to Kinnerk were tainted by the prior involuntary statement because Kinnerk used information obtained from that statement in interviewing J.W. J.W. points to Kinnerk's use of notes during the videotape as support for her argument.   However, there is no evidence that the notes Kinnerk used were based on J.W.'s confession to police.   In fact, they seem to be based upon Kinnerk's prior statement to Kinnerk.   Under the circumstances, the State met its burden of showing attenuation by clear and convincing evidence.   J.W.'s statements to Kinnerk were properly admitted, and we therefore find that no error occurred.

In any event, any error would be subject to harmless error analysis.   See Mitchell, 152 Ill.2d at 328, 178 Ill.Dec. 354, 604 N.E.2d 877.   In this case, the evidence was sufficient without J.W.'s confessions to sustain her conviction.   J.W. was seen inside the car “wrestling” with her mother.   She was seen removing a knife from the kitchen and then returning outside with the intention of stabbing someone.   The diary which described the stabbing, a bloody knife, and J.W.'s blood stained clothing were found inside her bedroom.   The three knives, which were consistent with causing Ms. Walters' wounds, were identified by Morris as having come from his apartment.   J.W.'s fingerprints were found on the car and on one of the knives.   J.W.'s blood was found inside the apartment and may have been mixed with Ms. Walters' blood inside the car.   J.W. had cuts on her hands that required stitching.   In light of this evidence, any error from admission of the confessions was harmless.

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 J.W. argues that the EJJ statute is unconstitutional because it undermines the right to a jury trial “by insulating some factual issues from the jury, and because it fails to apply the reasonable doubt standard, where constitutionally, it must be applied.”   Specifically, J.W. complains that the EJJ statute, like the statute declared unconstitutional in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), allows for an enhancement of penalty based on a fact that should be decided by a jury beyond a reasonable doubt.   That fact is whether the case qualifies for prosecution under the EJJ statute.

In response, the State contends that the EJJ statute does not violate Apprendi because it is not an enhancement provision.   The State urges us to follow In re Matthew M., 335 Ill.App.3d 276, 269 Ill.Dec. 251, 780 N.E.2d 723 (2002), in which the Second District Appellate Court found that the EJJ statute does not violate Apprendi.   J.W. replies that Matthew M. was incorrectly decided.

In Apprendi, the Supreme Court considered the constitutionality of a New Jersey statute that allowed the sentence of a defendant convicted of a second degree offense to be enhanced beyond that usually allowed for a second degree offense based on a judge's finding that the “ ‘defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ ”  Apprendi, 530 U.S. at 468-69, 120 S.Ct. at 2351, 147 L.Ed.2d at 442, quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp.1999-2000).   It found that the New Jersey statute was “an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system” because it allowed a defendant to be sentenced in excess of what was authorized by the jury's verdict.  Apprendi, 530 U.S. at 497, 120 S.Ct. at 2366, 147 L.Ed.2d at 459.   The Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

In the only case considering the constitutionality of the EJJ statute in light of Apprendi, the Second District Appellate Court held that the EJJ statute was not unconstitutional under Apprendi “[b]ecause the trial court's determination to designate a proceeding as an EJJ prosecution does not adjudicate the minor's guilt.”  Matthew M., 335 Ill.App.3d at 289, 269 Ill.Dec. 251, 780 N.E.2d 723.   Importantly, the court noted that “[a]lthough * * * in designating a proceeding as an EJJ prosecution, the trial court may make findings that expose [respondent] to a greater sanction, he has no due process right to have a jury make those findings.”  Matthew M., 335 Ill.App.3d at 289, 269 Ill.Dec. 251, 780 N.E.2d 723.   The court explained:  “As a minor respondent has no constitutional right to be prosecuted through the juvenile court system, the legislature's decision to require the imposition of a conditional adult sentence in certain instances does not result in a constitutional deprivation of due process.”  Matthew M., 335 Ill.App.3d at 290, 269 Ill.Dec. 251, 780 N.E.2d 723.

 We agree with the court in Matthew M., that Apprendi is not applicable under the circumstances of this case.   As a general rule, minors do not have the right to a jury trial in delinquency cases.   See 705 ILCS 405/5-101(3)(West 2000) (“Minors shall not have the right to a jury trial unless specifically provided by this Article”);  see also McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 1986, 29 L.Ed.2d 647, 661 (1971) (plurality op.)  (“[W]e conclude that trial by jury in the juvenile court's adjudicative stage is not a constitutional requirement”);  In re A.G., 195 Ill.2d 313, 318-19, 253 Ill.Dec. 911, 746 N.E.2d 732 (2001) (while other procedural rights of adults in criminal proceedings apply in juvenile cases, the right to a jury trial does not).   Moreover, a juvenile does not have a constitutional right to a juvenile adjudication and juvenile sentence in lieu of a criminal prosecution and adult sentence.   See People v. P.H., 145 Ill.2d 209, 223, 164 Ill.Dec. 137, 582 N.E.2d 700 (1991) (“[J]uveniles have neither a common law nor a constitutional right to adjudication under the Juvenile Court Act”).   Our courts have applied similar reasoning in holding that transfer provisions, which also subject juveniles to adult sentences, are not unconstitutional under Apprendi.   See People v. Beltran, 327 Ill.App.3d 685, 690-91, 262 Ill.Dec. 463, 765 N.E.2d 1071 (2002);  People v. Beck, 339 Ill.App.3d 413, 418, 274 Ill.Dec. 53, 790 N.E.2d 429 (2003).   We find no reason to depart from this reasoning.

Moreover, unlike the statute in Apprendi, the EJJ determination does not increase the allowable penalty for murder based upon a judge's independent finding with regard to additional elements of the crime.   J.W. was convicted of first degree murder, which requires proof that a person killed another without lawful justification and that

“in performing the acts which cause the death:

(1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another;  or

(2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another;  or

(3) he is attempting or committing a forcible felony other than second degree murder.”  720 ILCS 5/9-1(a)(West 2000).

If the State succeeds in proving these elements beyond a reasonable doubt, the judge has discretion in sentencing the offender to 20 to 60 years' imprisonment.  730 ILCS 5/5-8-1(a)(1)(b) (West 2000).   In this case, the jury found that the State proved each of these required elements beyond a reasonable doubt.   J.W. does not contest the sufficiency of the evidence.   The EJJ statute does not modify or change the elements of first degree murder in any way.   See 705 ILCS 405/5-810 (West 2000).  Thus, the EJJ statute does not violate J.W.'s due process rights under Apprendi.

J.W. next contends that the EJJ statute is unconstitutionally vague because it “does not provide a juvenile with proper notice as to what actions by the minor will result in a violation of the minor's juvenile sentence” and it does not “provide a judge with any guidance or standards for determining when a violation of the conditions of the juvenile sentence should result in the imposition of the adult sentence.”   Particularly, J.W. complains of the statute's failure to define the “conditions” of the juvenile sentence and the term “offense.”

The State first contends that J.W. has no standing to contest the constitutionality of this provision because her “claimed injury derives from her challenge to the provisions contained in the EJJ [statute] which detail when an adult sentence will be served.   Respondent has yet to suffer any injury, however, because she has yet to have her adult sentence imposed and may never have that adult sentence imposed.”   Regardless, the State contends, the statute is not vague.   It claims that use of the term “offense” means criminal offense, and “[t]o assume or argue otherwise is absurd.”   The State also argues that the term “conditions” is not vague because “it is evident that the juvenile court-in individual cases-actually imposes the ‘conditions of the juvenile sentence.’ ”  (Emphasis in original.)

The provision at issue provides:

“When it appears that a minor convicted in an extended jurisdiction juvenile prosecution under subsection (1) has violated the conditions of his or her sentence, or is alleged to have committed a new offense upon the filing of a petition to revoke the stay, the court may, without notice, issue a warrant for the arrest of the minor.   After a hearing, if the court finds by a preponderance of the evidence that the minor committed a new offense, the court shall order execution of the previously imposed adult criminal sentence.   After a hearing, if the court finds by a preponderance of the evidence that the minor committed a violation of his or her sentence other than by a new offense, the court may order execution of the previously imposed adult criminal sentence or may continue him or her on the existing juvenile sentence with or without modifying or enlarging the conditions.   Upon revocation of the stay of the adult criminal sentence and imposition of that sentence, the minor's extended jurisdiction juvenile status shall be terminated.   The on-going jurisdiction over the minor's case shall be assumed by the adult criminal court and juvenile court jurisdiction shall be terminated and a report of the imposition of the adult sentence shall be sent to the Department of State Police.”  705 ILCS 405/5-810(6)(West 2000).

 “The general rule is that courts will not consider the validity of a statutory provision unless the person challenging the provision is directly affected by it or the unconstitutional feature is so pervasive as to render the entire statute invalid.”  People v. Morgan, 203 Ill.2d 470, 482, 272 Ill.Dec. 160, 786 N.E.2d 994 (2003).   Our inquiries into the constitutionality of statutes are limited to the extent required by the particular case, and we will not formulate a rule broader than necessitated by the circumstances of that case.   See P.H., 145 Ill.2d at 223, 164 Ill.Dec. 137, 582 N.E.2d 700 (holding that “gang-transfer” statute was constitutional).   Thus, we first consider whether J.W. has standing to challenge the constitutionality of the revocation of stay provision of the EJJ statute.

 “The doctrine of standing is intended to insure that issues are raised and argued only by those parties with a real interest in the outcome of the controversy.”  People v. Greco, 204 Ill.2d 400, 409, 274 Ill.Dec. 73, 790 N.E.2d 846 (2003).   It requires that the person has suffered or is in immediate danger of suffering a direct injury as a result of enforcement of the challenged statute.   See Greco, 204 Ill.2d at 409, 274 Ill.Dec. 73, 790 N.E.2d 846.   Standing is determined on “a case-by-case basis.”  Greco, 204 Ill.2d at 409, 274 Ill.Dec. 73, 790 N.E.2d 846.

In this case, the trial court sentenced J.W. to a juvenile sentence and an adult sentence;  however, it stayed her adult sentence pursuant to the EJJ statute.   See 705 ILCS 405/5-810(4)(ii)(West 2000).   The portion of the EJJ statute that J.W. challenges provides for the revocation of the stay and the execution of the adult sentence.   See 705 ILCS 405/5-810(6)(West 2000).   She directs us to a case from the Supreme Court of Montana in support of her standing.

In re S.L.M., 287 Mont. 23, 30, 951 P.2d 1365, 1369 (1997), the Supreme Court of Montana considered a number of constitutional challenges to its Extended Jurisdiction Prosecution Act, which provides that under certain circumstances juvenile offenders may be sentenced to a juvenile sentence and an adult sentence, which is stayed “ ‘on the condition that the youth not violate the provisions of the disposition order and not commit a new offense.’ ”   S.L.M., 287 Mont. at 30, 951 P.2d at 1369, quoting Mont.Code Ann. § 41-5-1604(1)(b).  Five juveniles contested the constitutionality of the statute, claiming that it violated “equal protection by subjecting them to a longer period of incarceration than that permitted for an adult offender.”  S.L.M., 287 Mont. at 31, 951 P.2d at 1370.   The court found that the juveniles had standing to contest the constitutionality of their adult sentences.  S.L.M., 287 Mont. at 31, 951 P.2d at 1370.   In that case, however, adult sentences had been executed against three of the five juveniles who had violated the provisions of their disposition orders or had committed a new offense.   S.L.M., 287 Mont. at 26-28, 951 P.2d at 1367-68.   Moreover, at issue in that case was whether imposition of the sentence, rather than execution of it, violated the juveniles' equal protection rights.

In this case, J.W.'s sentence has been imposed and she does not contest the constitutionality of imposition of the sentence on equal protection grounds as in S.L.M. Nor does she contest imposition of the sentence on vagueness grounds.   Instead she contests revocation of the stay on vagueness grounds.   However, under the law in this state, her claim is premature and we will not consider it.

In People v. Wills, 61 Ill.2d 105, 108, 330 N.E.2d 505 (1975), the supreme court reviewed an appellate court decision, which held that section 5-8-1(e) and a portion of section 3-3-9(a)(3)(i) of the Unified Code of Corrections (now see 730 ILCS 5/3-3-9(a)(3)(i), 5-8-1(e)(West 2000)) were unconstitutional because their terms provided that “in the event of revocation of [a mandatory] parole, a defendant could be incarcerated for periods which in the aggregate exceeded the maximum of the indeterminate sentence imposed by the [circuit] court.” Wills, 61 Ill.2d at 109, 330 N.E.2d 505.   The supreme court reversed that portion of the appellate court's holding, finding that the constitutionality of the provisions was not properly before the court because the defendant was not eligible for parole at the time and consequently, “there [was] no basis for application of the statutory provisions which the appellate court held invalid.”  Wills, 61 Ill.2d at 109, 330 N.E.2d 505.

In People v. Mengedoht, 31 Ill.App.3d 1084, 1086, 335 N.E.2d 196 (1975), the court considered the same mandatory parole provision and similarly recognized that where the defendant was not yet eligible for parole, “the situation had not developed to the point of parole and no injury had yet occurred.”

In People v. Therriault, 42 Ill.App.3d 876, 890, 1 Ill.Dec. 717, 356 N.E.2d 999 (1976), the court also considered a mandatory parole provision and similarly concluded that the defendant's constitutional claim was not properly before the court because “the constitutionality of the statute in question [would not be] ripe for decision until parole [had] actually been revoked.”   Likewise, in this case, J.W.'s claim is premature until a petition to revoke the stay is filed in accordance with the EJJ statute.  705 ILCS 405/5-810(6)(West 2000).

 J.W. next argues that even if the EJJ statute is constitutional, the trial court erred in designating her proceeding as an EJJ prosecution because J.W. was only 13 years old at the time of the offense and had no history of delinquency.   The State responds that the trial court appropriately considered and weighed all relevant factors and that it was not an abuse of discretion for the court to designate these proceedings as an EJJ prosecution.

The EJJ statute provides that upon a petition by the State, alleging that the minor committed a crime when she was 13 years of age or older that would have been a felony if committed by an adult, if the trial court determines there is probable cause to believe the allegations, “there is a rebuttable presumption that the proceeding shall be designated as an extended jurisdiction juvenile proceeding,” and

“[t]he judge shall enter an order designating the proceeding as an extended jurisdiction juvenile proceeding unless the judge makes a finding based on clear and convincing evidence that sentencing under the Chapter V of the Unified Code of Corrections would not be appropriate for the minor based on an evaluation of the following factors:

(i) The seriousness of the alleged offense;

(ii) The minor's history of delinquency;

(iii) The age of the minor;

(iv) The culpability of the minor in committing the alleged offense;

(v) Whether the offense was committed in an aggressive or premeditated manner;

(vi) Whether the minor used or possessed a deadly weapon when committing the alleged offense.

In considering these factors, the court shall give greater weight to the seriousness of the alleged offense and the minor's prior record of delinquency than to other factors listed in this subsection.”  705 ILCS 405/5-810(1)(b)(West 2000).

At the hearing on the State's petition for an EJJ prosecution, the parties stipulated that J.W. was 13 years old at the time of the offense and that the alleged offense, murder, would be a felony if committed by an adult.   Degiulio testified that the victim was alive at the scene of the stabbing on September 2, 2000, but was pronounced dead at Northwest Community Hospital at 5:34 p.m. the same day.   The victim died of multiple stab and incise wounds, nearly 200 such wounds.   On September 4, 2003, at 2:38 a.m., J.W. implicated herself in her mother's death.

“She indicated that she had stabbed and caused the death of her mother.   It was also indicated that prior to this, she had placed some writings in a diary that had indicated her intent or plan, and this plan was ultimately carried out to stab and kill her mother.”

J.W. used a deadly weapon.   In fact, she used three knives in the course of stabbing her mother.   Degiulio also stated that J.W. had no prior record of delinquency.   On cross-examination, Degiulio stated that handwriting exemplars obtained from J.W. were inconclusively compared with the handwriting in the diary.   He also admitted knowing that there were fingerprints found in the car that did not belong to J.W. or to the victim.   However, J.W.'s fingerprints were on at least one of the knives.

The defense offered the statement of Ashley as it was recorded by Assistant State's Attorney Lawrence M. Lykowski on September 12, 2000, at 4:50 p.m. Ashley, a fourth grader, reported that she was at the victim's house on Saturday, September 2, 2000.   At one point, the victim left the house wearing a denim shirt and a hat.   The victim then called “up to [J.W.] and asked her to bring down her sunglasses.”   Ashley heard J.W. “grab something from the table.”   Then, she heard the door close as J.W. went outside.   Twenty minutes later, Ashley could not find J.W. so she went out on the balcony.   She saw the victim's car.

“[S]he looked through the rear window and could see into [Ms. Walters'] car.  * * * [S]he saw [J.W.] in the front driver's seat of the car, and she could see that [Ms. Walters] was in the front passenger area.  * * * [I]t looked like [Ms. Walters] and [J.W.] were wrestling.   It looked like they were rolling around.”

At some point, J.W. noticed Ashley and Taylor standing on the balcony.   She yelled to them that somebody had killed her mother.   Ashley called 911 at that time.   J.W. came back into the house “and got a knife from the block on the counter.”   J.W. said, “ ‘I am going to kill whoever killed by mother.’ ”   J.W. made a telephone call and washed her hands “because she had cuts on her hands.”

The trial court granted the State's motion and designated the proceedings as an EJJ prosecution.   The court considered “the seriousness of the alleged offense, the crime of murder.   That the minor does, in fact, have no history of delinquency.   That the minor was at the young age of 13 years old.”   The court also considered J.W.'s confession, that she committed the crime alone, and that there was evidence that the crime was premeditated.

Admitting that no cases have analyzed a court's decision to designate a proceeding as an EJJ prosecution, J.W. relies on a case interpreting the juvenile transfer statute in support of her argument that the trial court's EJJ designation was improper because she was only 13 at the time she committed the crime and had no history of delinquency.   In People v. Clark, 119 Ill.2d 1, 5, 115 Ill.Dec. 613, 518 N.E.2d 138 (1987), the minor was charged with intentional murder, knowing murder, and felony murder in each of two deaths, along with two counts of home invasion, two counts of residential burglary, two counts of robbery, and one count of aggravated criminal sexual assault.   Upon the State's petition, the case was transferred to criminal court.  Clark, 119 Ill.2d at 4, 115 Ill.Dec. 613, 518 N.E.2d 138. Ultimately, the minor was found guilty on all counts.  Clark, 119 Ill.2d at 6, 115 Ill.Dec. 613, 518 N.E.2d 138. On appeal, the minor contested the adequacy of the transfer hearing, specifically on the grounds that “(1) no consideration was given to whether or not his best interests or the best interests of society necessitated that he be imprisoned for the remainder of his life [as required upon conviction of two counts of intentional murder] and (2) no consideration was given to his social and personal history, particularly as this bears on his rehabilitative potential.”  Clark, 119 Ill.2d at 6-7, 115 Ill.Dec. 613, 518 N.E.2d 138.

The court recognized that “[w]here the juvenile judge considers evidence on the various statutory factors and evidence on any other relevant matters as provided in [the transfer statute], the resulting decision is a product of sound judicial discretion which will not be disturbed on review.”   Clark, 119 Ill.2d at 14, 115 Ill.Dec. 613, 518 N.E.2d 138.   However, the court found that the juvenile judge did not “consider whether or not imprisonment of the defendant for the duration of his natural life was in his best interests or was required for the security of society” as necessitated under the transfer statute.  Clark, 119 Ill.2d at 16, 115 Ill.Dec. 613, 518 N.E.2d 138.   Thus, the court held that the transfer hearing was inadequate.   Clark, 119 Ill.2d at 16, 115 Ill.Dec. 613, 518 N.E.2d 138.   As an alternative ground for finding the hearing inadequate, the court found that the trial court failed “to investigate the history of the defendant, especially as it related to his potential for rehabilitation.”  Clark, 119 Ill.2d at 16, 115 Ill.Dec. 613, 518 N.E.2d 138.

In this case, there is no evidence that the trial court failed to consider J.W.'s age or her lack of previous delinquency.   In fact, the court's ruling affirmatively states that it considered both factors along with the other relevant statutory factors.   One of the factors that the EJJ statute allows the juvenile court to give greater weight is the “seriousness of the alleged offense.”   The trial court did so in this case.   Accordingly, its decision “is a product of sound judicial discretion which will not be disturbed on review.”  Clark, 119 Ill.2d at 14, 115 Ill.Dec. 613, 518 N.E.2d 138;  see also People v. D.B., 202 Ill.App.3d 194, 200, 147 Ill.Dec. 533, 559 N.E.2d 873 (1990).

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[The following material is nonpublishable under Supreme Court Rule 23].

J.W. next claims that she was denied her rights to a fair and impartial jury and the effective assistance of counsel based on certain actions during voir dire.   J.W. complains that four jurors were improperly seated on her jury.   She further complains that a prospective alternate juror, who was not seated on the jury or selected as an alternate, should have been excused for cause.   J.W. acknowledges that defense counsel failed to properly preserve her objections to three of the jurors.   However, she contends that her trial counsel was ineffective, and we should not apply waiver to bar her claims.   J.W. also claims that she was denied her right to a fair and impartial jury because the trial court failed to sufficiently question and instruct the jury pool following one perspective juror's in camera admission that he had discussed the case with other prospective jurors.

The State argues that J.W. was not denied the effective assistance of counsel during voir dire.   Further, it claims that she was not denied a fair trial because the allegedly objectionable jurors unequivocally stated that they could be fair and impartial.   The State claims that the trial court appropriately and effectively inquired of each prospective juror regarding their knowledge and conversations regarding the case, that this questioning did not reveal any taint on the jury by discussions between the prospective jurors, and that the trial judge properly instructed the jurors not to discuss the case once they were sworn.

Defense counsel did not challenge Phillipson or Silvers for cause. Nor did defense counsel exercise peremptory challenges to prevent Garvey and Griffin from being seated on the jury.   In fact, all four jurors served on the jury.   Yet, the defense had peremptory challenges remaining at the time each juror was accepted.   Thus, J.W.'s claims of error with respect to these jurors are waived and reversal is not required.   See People v. Pendleton, 279 Ill.App.3d 669, 675, 216 Ill.Dec. 290, 665 N.E.2d 350 (1996)(“[T]he settled principle in Illinois is that a court's failure to remove a juror for cause is grounds for reversal only if the defense has exercised all of its peremptory challenges and an objectionable juror was allowed to sit on the jury”);  People v. Cedeno, 263 Ill.App.3d 257, 262, 200 Ill.Dec. 708, 635 N.E.2d 1047 (1994)(“[B]ecause defendant had two peremptory challenges remaining at the time the jury was empaneled, he has waived his claim against the denial of these two motions to excuse for cause”).

With regard to jurors Phillipson and Silvers, however, J.W. claims that her trial counsel was ineffective in failing to challenge them for cause.   In order to show that she was denied the effective assistance of counsel, J.W. must show that her “counsel's performance ‘fell below an objective standard of reasonableness' and * * * that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”  People v. Metcalfe, 202 Ill.2d 544, 560, 270 Ill.Dec. 69, 782 N.E.2d 263 (2002), quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984).   She has failed to show either.

When examining an attorney's conduct to determine whether it was ineffective assistance, we consider the conduct “at the time of the attorney's conduct.”   People v. Hobley, 159 Ill.2d 272, 303, 202 Ill.Dec. 256, 637 N.E.2d 992 (1994).   We presume that the challenged actions were the product of sound trial strategy, and it is the defendant's burden to overcome this presumption.   Metcalfe, 202 Ill.2d at 561, 270 Ill.Dec. 69, 782 N.E.2d 263.   Specifically, our courts have held that “defense counsel's conduct during jury voir dire involves matters of trial strategy that generally are not subject to scrutiny under Strickland.”  Metcalfe, 202 Ill.2d at 562, 270 Ill.Dec. 69, 782 N.E.2d 263;  see also Bowman, 325 Ill.App.3d 411, 428, 259 Ill.Dec. 285, 758 N.E.2d 408 (2001).   In this case, J.W. presents no evidence to rebut the presumption that her trial counsel's actions were the result of sound trial strategy.

Regardless, even if J.W. could show that her attorney's actions during voir dire were not the product of sound trial strategy, she would still have to show clear bias or prejudice by a juror that affected the outcome of the trial.   See Metcalfe, 202 Ill.2d at 562, 270 Ill.Dec. 69, 782 N.E.2d 263;  Bowman, 325 Ill.App.3d at 428-29, 259 Ill.Dec. 285, 758 N.E.2d 408.   In order to do so she must show “the actual existence of a disqualifying state of mind as will raise the presumption of partiality.”  People v. Johnson, 149 Ill.2d 118, 138, 171 Ill.Dec. 401, 594 N.E.2d 253 (1992).   An equivocal response by a prospective juror is not enough where the prospective juror later states that he will try to disregard his bias.  Hobley, 159 Ill.2d at 297, 202 Ill.Dec. 256, 637 N.E.2d 992.  “The juror's entire voir dire examination must be considered.”  Bowman, 325 Ill.App.3d at 422, 259 Ill.Dec. 285, 758 N.E.2d 408 (2001).

In this case, the voir dire of each contested juror revealed that each could keep a fair and open mind.   Significantly, each juror affirmed an understanding of certain basic principles of law such a the State's burden, J.W.'s right not to testify, and the presumption of innocence.   Further, any equivocal answers given by these jurors were followed by statements indicating that the juror would attempt to put aside any biases.   The voir dire of Phillipson, for instance, revealed that he had been a victim of a burglary.   Although he initially responded that he was not sure whether anything about that incident would cause him to be unfair to either side, he agreed that he could put aside his feelings about that prior incident and decide the case based on the evidence adduced during trial.   Additionally, although Phillipson volunteered that he was working with his girlfriend and her son on anger management issues when the judge asked whether there were any additional facts that might affect his ability to be fair and impartial, Phillipson affirmed that he could put his personal experiences aside and decide the case based solely on the evidence.

Likewise, Silvers, who indicated that she was acquainted with a number of judges (although initially contending that she could not be certain whether any conversations with one of those judges would affect her ability to be impartial), agreed to put aside those discussions and decide the case based on the evidence.   Under these circumstances, J.W. has failed to show that either of these jurors was clearly biased or prejudiced against her.   Accordingly, we find no ineffectiveness of counsel.

J.W.'s last challenge to an individual juror is to Wehrle, an Assistant State's Attorney, who was not seated on her jury.   She claims that the trial court erred in not excusing Wehrle from service as an alternate juror for cause because of Wehrle's position in the State's Attorney's Office.

Defense counsel exercised a peremptory challenge to excuse Wehrle. As a general rule, “a defendant may not challenge on appeal the denial of a motion to excuse for cause a juror who is eventually excluded by use of a peremptory challenge, for he has suffered no prejudice.”  People v. Jefferson, 257 Ill.App.3d 258, 274, 195 Ill.Dec. 461, 628 N.E.2d 925 (1993);  see also People v. Johnson, 162 Ill.App.3d 952, 955, 114 Ill.Dec. 188, 516 N.E.2d 343 (1987).   An exception to this rule exists, however, where the defendant was “forced to accept another objectionable juror after he had exhausted his peremptory challenges because the court refused to excuse the venire member challenged earlier for cause.”  People v. Novak, 242 Ill.App.3d 836, 856-57, 183 Ill.Dec. 555, 611 N.E.2d 1203 (1993).   In this case, J.W. does not allege that she was forced to accept another objectionable juror because of the trial court's failure to excuse Wehrle for cause.   Moreover, the only jurors seated after Wehrle was excused by peremptory challenge were alternate jurors who never participated in the deliberations.   Thus, no prejudice resulted from the failure to excuse Wehrle for cause, and we need not consider the merits of J.W.'s claim.

J.W.'s final contention regarding jury selection is that the trial court failed to properly question jurors regarding their discussions about the case.   During voir dire, two prospective jurors informed the trial court that they had participated in discussions regarding the case with other prospective jurors earlier in the day.   However, both jurors indicated that the discussions would not affect their abilities to be fair and impartial.   Defense counsel requested further questioning of the jurors about the discussions, however, the judge denied that request.   J.W. claims denial of the request was error.

J.W. relies on People v. Cain, 36 Ill.2d 589, 224 N.E.2d 786 (1967), for support.   That case, however, dealt with trial publicity and is not applicable.   In any event, the trial court asked each prospective juror about whether the juror had read or heard anything about the case.   If a juror responded in the affirmative, the trial court conducted further inquiry outside the presence of the venire.   We cannot say that this method of voir dire was an abuse of discretion, especially considering that defense counsel did not submit any additional voir dire questions regarding discussions between jurors.   See People v. Porter, 111 Ill.2d 386, 401, 95 Ill.Dec. 465, 489 N.E.2d 1329 (1986).

In her reply brief, J.W. reminds us that the jury was selected over the course of two days and that a juror's negative response to a question about exposure to the case meant nothing “if the discussions amongst the venire members took place after that juror had been questioned by the court.”   However, there is no evidence that jurors participated in any discussions regarding the case after they were selected and prior to being sworn, when the trial court instructed them not to discuss the case until their deliberations.   Regardless, “[a] verdict will not be set aside where it is obvious that no prejudice resulted from a communication to the jury.”  People v. Harris, 123 Ill.2d 113, 132, 122 Ill.Dec. 76, 526 N.E.2d 335 (1988).   In light of the overwhelming evidence of guilt and the two juror's affirmations that the discussions with other jurors did not lead them to any conclusions regarding guilt and would not affect their abilities to be fair and impartial, we cannot say that prejudice resulted in this case.

J.W. also claims that the trial court should have instructed the venire members not to discuss the case once it learned that they had. Defense counsel, however, never requested such an instruction, and in failing to do so, waived this claim.   See People v. Flores, 282 Ill.App.3d 861, 864, 218 Ill.Dec. 339, 668 N.E.2d 1171 (1996).   J.W. was not denied the right to a fair and impartial jury.

J.W. claims that the 35 year adult sentence was excessive and ignored her potential for rehabilitation.   The State first claims that J.W. waived this claim by not objecting at the sentencing hearing or filing a motion for reconsideration of sentence.   Alternatively, the State contends, the trial court did not abuse its discretion in sentencing J.W. to a 35 year adult sentence because the court weighed the mitigating and aggravating factors appropriately.   J.W. admits that she waived this issue by not filing a written motion in the trial court but urges us to review her claim under the plain error doctrine because it affects her substantial rights.

Our supreme court has held that sentencing issues must be raised in the trial court in order to be considered on appeal.  People v. Reed, 177 Ill.2d 389, 393, 226 Ill.Dec. 801, 686 N.E.2d 584 (1997).   However, we may consider the waived issue under the plain error doctrine.   See People v. Smith, 321 Ill.App.3d 523, 534, 254 Ill.Dec. 669, 747 N.E.2d 1081 (2001).   The doctrine allows us to decide a waived issue in two instances:  (1) where the evidence is closely balanced, or (2) where the error “ ‘is so fundamental and of such magnitude that the accused was denied a fair trial.’ ”  Smith, 321 Ill.App.3d at 534-35, 254 Ill.Dec. 669, 747 N.E.2d 1081.   In this case, the evidence was not closely balanced.   Nor did the trial judge's sentencing order deny J.W. a fair trial.   Accordingly, J.W.'s claim that her sentence is excessive is waived and does not rise to the level of plain error.

Waiver aside, we give “great deference to the trial court's judgment regarding sentencing because the trial judge, having observed the defendant and the proceedings, has a far better opportunity to consider these factors than the reviewing court, which must rely on the ‘cold’ record.”  People v. Fern, 189 Ill.2d 48, 53, 243 Ill.Dec. 175, 723 N.E.2d 207 (1999).   The trial judge has great discretion “to fashion an appropriate sentence within the statutory limits” based on the circumstances of each case, considering factors such as the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age and the nature of the offense.  Fern, 189 Ill.2d at 53, 55, 243 Ill.Dec. 175, 723 N.E.2d 207.   On review, we must “proceed with great caution” and avoid substituting our judgment for that of the trial court merely because we would have weighed the factors differently.   Fern, 189 Ill.2d at 53, 243 Ill.Dec. 175, 723 N.E.2d 207.   We review the trial judge's sentencing order for an abuse of discretion.   See Smith, 321 Ill.App.3d at 532, 254 Ill.Dec. 669, 747 N.E.2d 1081.  “A sentence within statutory limits will not be deemed excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense.”  Fern, 189 Ill.2d at 54, 243 Ill.Dec. 175, 723 N.E.2d 207.   Further,

“a claim that a sentence is excessive must be based on the particular facts and circumstances of that case.   If a sentence is appropriate given the particular facts of that case, it may not be attacked on the ground that a lesser sentence was imposed in a similar, but unrelated case.”  Fern, 189 Ill.2d at 62, 243 Ill.Dec. 175, 723 N.E.2d 207.

At the sentencing hearing, the State presented a victim impact statement from Amber Archibald, a first cousin of the victim.   The defense presented a letter from Frankie Swoope of the Nancy B. Jefferson Alternative School.   They presented a second letter from Georgio Marty, a counselor at the juvenile Counseling Detention Center.   Nicole Joseph, a caseworker at the Cook County Juvenile Detention Center, testified regarding J.W.'s positive behavior, leadership roles, and initiative while at the center.   Cheretha Gaston, a counselor at the Cook County Temporary Detention Center, explained that J.W. conformed to discipline codes “[w]ith no problems” and that J.W. was “very respectful.”

Natalie Hilton, Gilbert Mitchell, Annie Jones, and Carolyn Lekkowski, one of J.W.'s grandmothers, testified that they visited J.W. regularly and would continue to do so if she were sentenced to the Department of Corrections.   They also requested leniency with regard to J.W.'s adult sentence.

Reverend Leroy Sanders, pastor of Kennerwelt Church of Youth, where the Walters family and J.W. were members, described J.W. as “sort of a quiet person,” who never caused him any trouble and worked in the youth fellowship, the choir, and with other children.   J.W. also read a statement to the court.

In announcing its sentence, the trial court considered the social investigation prepared by the juvenile probation officer, the adult probation department investigative report/sentencing report, the psychological evaluation prepared by Forensic Clinical Services, the victim impact statement written by Amber Archibald, the testimony of the witnesses, and the arguments of the parties.   The trial court also recognized that its duty was to “balance the interest of the minor with the interest of the public.”   The trial court made a detailed oral ruling in which it outlined the factors it considered in mitigation (including J.W.'s lack of a criminal background and potential for rehabilitation) and in aggravation (including the brutality of the crime).   Under the circumstances, the trial court did not abuse its discretion in sentencing J.W.

[The preceding material is nonpublishable under Supreme Court Rule 23].

 Finally, J.W. argues that the dispositional order and the mittimus should be amended to reflect conviction of only one count of first degree murder.   The State agrees, and we do as well.  “A defendant cannot be convicted of more than one murder arising out of the same physical act.”   People v. Pitsonbarger, 142 Ill.2d 353, 377, 154 Ill.Dec. 562, 568 N.E.2d 783 (1990)(vacating four of six murder convictions because only two homicides occurred).   In this case, there was but one homicide, yet both the dispositional order and the mittimus reflect convictions for first degree murder under sections 9-1(a)(2) and 9-1(a)(1) of the Criminal Code (720 ILCS 5/9-1(a)(1), (a)(2)(West 2000)).  “When multiple murder convictions have been entered for the same act, the less culpable convictions must be vacated.”   Pitsonbarger, 142 Ill.2d at 377, 154 Ill.Dec. 562, 568 N.E.2d 783.   Thus, the dispositional order and the mittimus should be amended to reflect only one conviction for murder under section 9-1(a)(1) of the Criminal Code (720 ILCS 5/9-1(a)(1)(West 2000)).

For the foregoing reasons, we affirm J.W.'s conviction for first degree murder under section 9-1(a)(1) of the Criminal Code (720 ILCS 5/9-1(a)(1)(West 2000)) and her sentence under the EJJ statute (705 ILCS 405/5-810 (West 2000)).   We order that the dispositional order and the mittimus be amended to reflect only one conviction for first degree murder under section 9-1(a)(1) of the Criminal Code (720 ILCS 5/9-1(a)(1)(West 2000)).

Affirmed as amended.

FOOTNOTES

1.   Although Devonte is spelled Devonte, Devante, and Devontae in the record, the parties refer to Devonte in their briefs.

Justice McBRIDE delivered the opinion of the court: